Tim Cook, boss of the Apple Republic, is rallying his citizens who happen to be residents of the United States to wage a war. The enemy is the American government. Cook is worried that the Leviathan is about to go wild, and many sympathize with him.
A replay of the story. The Federal Bureau of Investigation (FBI) asked Apple to unblock a terrorist’s iPhone so that FBI could look inside there and advance further in the War on Terror. FBI had trouble identifying a law or regulation specifically supporting its request, so it asked the court for a court order based on the All Writs Act of 1789. The All Writs Act grants courts the authority to issue orders in the absence of specific statute. The Court gave the court order, and a public uproar was stirred.
There are three major worries. Firstly, people have concerns over the potential leakage of the technology into bad handsi ii. They are rightly suspicious because the U.S. government has not been very good at keeping such secrets (Think the weapon-grade virus “Stuxnet worm” whose codes were available online 6 months after its development).
Secondly, people raise eyebrows over the intention of the FBI in tampering with something beyond its domain, and people are worried that the FBI will unscrupulously use the “technique… over and over again”iii iv v. Unfortunately, they are again rightly indignant because the U.S. government has not shown much respect to individuals’ privacy in recent years (In relation to this concern, many articles remind us to think Edward Snowdenvi vii).
Lastly, Tim Cook and his sympathizers, with their “deepest respect for America democracy and a love of [their] country”, accuses the behaviour of the FBI and court as “an overreach by the U.S. government”viii ix.
When the bitten Apple goes bitter
The first two criticisms are specific to the government’s capability of and commitment to protecting individuals’ rights to privacy and security, the last criticism alludes at a more fundamental problem with the American political system. I would start by addressing the last concern and reveal that the solution is provided for in the American political system. Then I will show that the solutions to the previous two worries, too, lie in the framework of American political systems. Lastly, I will offer a suggestion to strengthen the U.S. political system to better serve the interest of the American people.
The emphasis of Mr Cook’s concern is on the unconsented coercion. Decisions by unelected bodies of the government is thought to be illegitimate because they do not have the explicit consent of the people through the process of legislation. It is a disturbing thought, but it is missing the point. The All Writs Act is intended to resolve emerging issues for which no specific laws are available. Sometimes courts may rule in favour of government agencies, sometimes it may not. But which side a decision at face level supports is not an indication of justice or injustice, provided that courts make decisions in the best interests of the American people. Compared to consistent inaction by the government agencies when no specific law is available, the All Writs Act allows more discretion and specifically the possibility of Uncle Sam to stepping in when its intervention serves the interest of American people.
More significantly, Mr Cook’s concern alludes at a more fundamental worry that the government agencies are colluding and intentionally working against the best interest of the people. Before I address whether there is good basis for Americans to share Mr Cook’s concern, it is important to be aware of a crucial piece of the jigsaw puzzle that are curiously missing in most accounts. Thanks to the torrential amounts of media coverage, now it becomes common knowledge that the All Writs Act of 1789 allows courts to issue orders in the absence of specific statute. What is rarely discussed in the media is the existence of the specific law — the Communications Assistance for Law Enforcement Act (CALEA) of 1994. In court cases like the Apple vs FBI case, various courts have rejected the application of this specific law citing a multitude of reasons. In this Apple vs FBI case, the CALEA was rejected because the CALEA deals with information in transition whereas the case is about information at rest. Now here is the crux of the issue:
Whether the Americans should be worried / fearful / provoked / outraged depends on whether the court has good reasons to come to its decision, the good reasons being those that the Congress, upon deliberation, would likewise endorse as reasonable and sufficient to support the decision.
Here the Congress will have to deliberate on two dimensions: firstly, whether it substantially serves the public interest for law enforcement agencies to obtain assistance of commercial entities when dealing with information “at rest”; secondly, whether the government can be entrusted with such technology in the sense that it will not abuse it or cause it to fall into bad hands. The first dimension addresses Mr Cook’s concern that people’s interest is compromised by an undemocratic procedure, and the second dimension addresses the first two concerns laid out earlier.
The judgment should be based on meeting two conditions: the Congress should deliberate before making an intelligent judgment; and since the issue demands advanced knowledge on electronic encryption and security, the Congress should make the decision with the aid of independent specialists in the technical field.
If, upon deliberation, the Congress finds that the court indeed applied the right principles and reasoning to support its decisions and that the Congress would have reached the same decision were it set the task initially, the American public should be relieved that the court has not compromised the interests of the American people. That is, based on this case, there is no substantial basis for being worried that government agencies are colluding. The Congress should then push for the decision to be codified in law and formally legitimate the treatment.
Should the leviathan go wild
It is however possible that after deliberation the Congress does not agree with the court, the Congress should, too, put down in law its own answers and reasoning. Americans should be really worried only if the Congress finds court decisions on similar issues are consistently and unjustifiably ruled in favour of government agencies. By the All Writs Act, courts have to follow “principles of law” which supposedly are the same guiding principles for Congress to deliberate and make judgment. If the judgment by the courts are consistently opposite to that of the Congress, there is danger that the unelected bodies of the political system are potentially collaborating to each other’s advantage and in so doing systematically undermining the interest of the American people. It would echo Mr. Cook that the Leviathan might have taken a life of its own and gone wild.
In such a bleak scenario, the danger is grave because the threat to the public interest is built into the political structure – this time it manifests itself in the issue of electronic encryption and the Congress can eliminate the loopholes by making more specific laws, what about the next prey? This time it involves the court, the FBI and the All Writs Act, next time the stakeholders and their weapons can be an entirely different combination. Where is the superman to save the American people from Uncle Sam the next time, and every time in future?
It may look like a remote possibility that the American people systematically fall prey to the Leviathan. But in this scenario we are essentially coming back to a similar concern as the one expressed by Mr Cook. Now we see that if we develop Mr Cook’s idea further as we did in the previous section, it may not appear as plausible as he and his sympathizers would like us to believe. However, in any case it became a more realistic possibility, the thought process we just went through is substantially different from Mr Cook not only because it involves a democratic process with the Congress intervening in its capacity as the legislative arm, but also because how American people can move from there, too, should be guided with the democratic process. That is, the democratic process will allow us to alleviate the great danger of the collusion among unelected bodies of the political systems which systematically undermine the public interest.
At one extreme, the people is ultimately the sole source of political legitimacy and the people retain the ability to take power from the unelected bodies of the political system. However, this move is seen as undesirable with many dangers of its own. People’s perspectives and opinions are vulnerable to manipulation in various ways, for example the incitement based on popular passion. In this Apple vs FBI case, we witness popular passion manifests itself when respectable newspapers and magazines quote Mr Cook and also spontaneously describe this issue as the FBI using the All Writs Act as a “blank cheque” to pin Apple at “metaphorical gunpoint” to create a “backdoor” and to “make the lock weaker” for FBI x xi . Such sensationalization contributes to the worry, fear, outrage and add pressure to knee-jerk emotional politics that may ironically undermine the common goodxii. In the light of such dangers, we need to acknowledge the place of unelected institutions in a democratic society. I will propose a milder solution bearing resemblance to the external audit function in the commercial world.
Big Brother is watching you, you watch him back
I propose the performance of the “justice audit” on disputes ruled in favour of government agencies. The “justice audit” should be intended to give reasonable independent assurance that the disputes are resolved in a manner serving the interests of the American people. In the existing system, the Americans and the corporations are already entitled to take government agencies to the court and appeal court decisions if they feel the court decisions do not represent justice. This is good. But if people expected that bodies of the political systems were colluding, they might not have contested the decision in the first place or give up prematurely. The “justice audit” enters into the picture to help such “dropouts” and bring to congressional attention instances of mistreatment of American people by the government. The “justice audit” should be carried out by a special commission entrusted by the Congress. It should function on the basis of reasoning, congruent with the basis of functioning at the unelected bodies which they are meant to audit. Since it does not function on the basis of popular support, the members of the commission should not be directly elected by the people, instead they should be selected by the Congress upon deliberation. It is worthwhile to note that the “justice audit” does not have to reveal the confidential information to the general public, just like auditors in the commercial world are bound not to reveal business secrets they come into contact with in their service to clients. Therefore, it could accommodate cases in which confidential information is involved, such as the Apple vs FBI case at hand.
Despite my extended discussion of the bleak scenario of unelected government bodies colluding at the expense of the interest of the American people, I am not saying that it reflects the reality. It is for the Congress to make the judgment and very likely we will receive a much merrier answer. In the happy-ending scenario that the Congress endorses court decisions, we can still benefit from the “justice audit” to address the first two concerns specific to the case. The first concern is essentially questioning the ability of the government to keep such secrets and the second is suspecting the FBI may misappropriate the technology. These are practical concerns, but they should not decidedly stop the people from granting law enforcement agencies the relevant authority. A more proactive approach is to try to mitigate such dangers, and the “justice audit” can do good in this respect, too. Borrowing the terms in commercial audit, we can address the concerns with 1). good designs and effective functioning of internal controls and 2). the requirement for the government to answer to a governance body uninvolved in the management or running of agencies’ daily businesses, that is the parallel of the independent directors in the business world. The special “justice audit” commission can verify designs and effective functioning of internal controls, and it is the perfect candidate for the body of independent directors, too.
Outside the Capitol Hill
Coming back to the specific case, the Congress should of course start deliberating – not on the specific Apple vs FBI case, but on the legitimacy of law enforcement agencies demanding assistance from commercial enterprises in revealing electronic data.
Other stakeholders should make their own contributions, too. The problem with the current public discussion is that few analyses are grounded on the validity of the reasoning by the court, which as explained earlier, is the key determinant whether there is evidence for the Leviathan going wild. Of course, to understand the issue requires substantial knowledge on electronic encryption which is beyond the reach of average people. Therefore, we would need the specialists in electronic encryption to exhibit their utmost civic responsibility and guide the public in understanding the rationale, or the lack thereof, in court decisions. The Fourth Estate, on the other hand, should introduce more sense and less sensation to the discussion. Members of the public should, too, stop churning out more foam to the public sensation and devote more of their intelligence to understanding the issue in greater depth and in wider context. Finally, the government should make a lot more effort to prove that it has improved from previously and is now capable of keeping important secrets and respectful of individual privacy and security.
Uncle Sam bites the Apple? Not a simple yes or no, but we all should be able to offer more substantial opinions to support our stands.
i The Editorial Board. (2016, February 18). Why Apple Is Right to Challenge an Order to Help the F.B.I. Retrieved April 27, 2016, from http://www.nytimes.com/2016/02/19/opinion/why- apple-is-right-to-challenge-an-order-to-help-the-fbi.html
ii Code to ruin? (2016, February 27). Retrieved April 27, 2016, from http://www.economist.com/news/leaders/21693578-rights-and-wrongs-apples-fight-fbi- code-ruin
iii Cook, T. (2016, February 16). Customer Letter – Apple. Retrieved April 27, 2016, from http://www.apple.com/customer-letter/
iv Levine, R. (2016, February 20). In the Government vs. Apple, Who Wears the Black Hat? Retrieved April 27, 2016, from http://www.nytimes.com/2016/02/21/opinion/sunday/in- the-government-vs-apple-who-wears-the-black-hat.html
v Taking a bite at the Apple. (2016, February 27). Retrieved April 27, 2016, from http://www.economist.com/news/science-and-technology/21693564-fbis-legal-battle- maker-iphones-escalation
vi Levine, R.
vii A.E.S. (2016, February 24). Why Apple is tussling with American law enforcement. Retrieved April 27, 2016, from http://www.economist.com/blogs/economist- explains/2016/02/economist-explains-17
viii Cook, T. (2016, February 16). Customer Letter – Apple. Retrieved April 27, 2016, from http://www.apple.com/customer-letter/
ix Code to ruin?
x Levine, R.
xi Richards, N., & Hartzog, W. (2016, February 25). Apple v the FBI: Why the 1789 All Writs Act is the wrong tool. Retrieved April 27, 2016, from https://www.theguardian.com/technology/2016/feb/24/apple-v-the-fbi-why-1789-all-writs- act-is-the-wrong-tool
xii Pettit, P. (2004). Depoliticizing democracy. Ratio Juris, 17(1), 52-65.